State v. Neloms

1

NOT DESIGNATED FOR PUBLICATION

No. 110,391

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL D. NELOMS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed February 5,
2016. Affirmed in part, vacated in part, and remanded with directions.

Michael P. Whalen and Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: A jury found Michael Neloms guilty of aggravated human
trafficking, promoting prostitution, and one count of aggravated indecent liberties with a
child. In this direct appeal, he argues: (1) the district court erred by denying his motion
to suppress statements; (2) the district court violated his due process rights by allowing
the State during the trial to amend the complaint and add the alternative charge of
promoting prostitution; (3) the district court erred by convicting him of aggravated
human trafficking rather than the more specific crime of promoting prostitution; (4) the
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aggravated human trafficking statute is unconstitutionally overbroad as applied in this
case; (5) the aggravated human trafficking statute is unconstitutionally vague; (6) the
district court erred by failing to instruct the jury on the definition of the word "used" in
the context of aggravated human trafficking; (7) the district court erred by allowing the
State to introduce a handwritten "novella" found in Neloms' home; (8) the district court
violated his constitutional right to conflict-free counsel by failing to adequately inquire
into a potential conflict between Neloms and appointed counsel; and (9) the district court
imposed an illegal sentence. We agree with Neloms, in part, on the sentencing issue, but
we otherwise affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 2011, Brandon Dodd was working at the front desk of a Motel 6 in
Wichita. Denisha Starnes came in and rented a room, but Dodd noticed additional people
in the car in which she had arrived. Because the motel had problems with people renting
rooms for others or having unauthorized people in their rooms, Dodd was paying close
attention. He saw Starnes and a white female, later identified as 15-year-old M.M., go up
to the motel room. Approximately 30 minutes later, a man arrived and one of the women
came out and took the man back to the room.

Dodd suspected prostitution, so he searched the internet for the phone number
Starnes had given when renting the room; the phone number was related to an escort
service. Dodd called the police to come evict the people from the motel room. Officer
Thomas Grindley of the Wichita Police Department responded to the call and saw Starnes
and Arianna Parks sitting in a car outside the motel. The two young women told Grindley
they were there to pick up a friend, but because they were vague about the friend's
identity and why they were waiting in the parking lot, Grindley suspected prostitution.
When other officers went into the room, they found M.M. and a man. The officers
arrested M.M. for prostitution, but the charges were later dropped.
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The following day, Officer Kent Bauman interviewed M.M. at the police station.
M.M., who told Bauman that her nickname was T.T., said that Parks and Starnes had
driven her to the motel, where she had sex with and was paid by a man she had arranged
to meet there for that purpose. The man had contacted her in response to a posting she
made on a website called Backpage, which is often used to advertise prostitution.
Bauman later testified that M.M. told him that Neloms had taken the photographs she
used in the advertisement and had posted the advertisement on Backpage.

M.M. told Bauman that she was a runaway and had met Neloms when he said
hello to her as she was walking down the street by his home. He introduced her to Starnes
and Parks, who were his sisters. M.M. admitted that she had sex with Neloms two or
three times and that the first time had been in early April 2011. When Bauman asked
M.M. if Neloms was her pimp, she said no.

Stacie Frobenius, a crime scene investigator with the Wichita Police Department,
processed the motel room on May 29, 2011. She photographed the room, collected
evidence, and swabbed a used condom found in the room. She later submitted the swabs
for DNA testing. Later that day, Wichita police officer Steven Drzymalla went to
Neloms' home, spoke with him, and took him into custody. Police searched Neloms'
home and seized evidence, including a blue duffel bag and some binders, or portfolios,
found in one of the bedrooms.

Detective Virgil Miller of the Wichita Police Department's Exploited and Missing
Children's Unit examined one of the portfolios seized from Neloms' home. Miller found a
high school identification card for M.M., two cell phone cards and instruction manuals,
Neloms' social security card, Neloms' Vision card, and a photocopy of Parks'
identification card. In an inside section of the portfolio, Miller found more papers,
including a stack of documents topped by a drawing and the title "Bottom Bitch." The
term "Bottom bitch" is commonly used in the prostitution trade for a prostitute who is
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second in command to a pimp. Miller also collected DNA swabs from Neloms. When
DNA analysis was completed, the results showed that the outside of the condom from the
motel room had sperm cell fractions consistent with Neloms as a minor contributor.

On May 29, 2011, Miller interviewed Neloms. Neloms told Miller that he had met
M.M. in February or March of 2011 and that she had told him she was 19 years old.
Neloms admitted that he had sex twice with M.M., who he also called T.T., but Neloms
claimed that when he learned she was 15 years old, he did not have sex with her again.
Neloms stated that he did not know his sisters were involved in prostitution and, if he had
known, he would have been upset with them. Neloms repeatedly denied profiting from
M.M.'s prostitution or placing any Backpage advertisements for her. After further
investigation, Miller learned that the Backpage advertisements had been paid for with a
credit card in Neloms' mother's name; M.M. later confirmed that she had paid for the
advertisements with Neloms' mother's credit card. That credit card had been found in
Neloms' pocket when Drzymalla took him into custody.

The State charged Neloms with one count of aggravated human trafficking and
two counts of aggravated indecent liberties with a child. The district court appointed
counsel to represent Neloms and over the course of pretrial proceedings, Neloms filed
multiple pro se motions for dismissal of counsel. The district court heard the motions and
granted the fourth one, appointing new counsel.

In November 2011, Neloms filed a motion in limine objecting, among other
things, to the admission of statements he had made during the investigation of the case. In
May 2012, he filed a second motion in limine, again arguing that the statements were
inadmissible. Both motions alleged that the statements were involuntary. The district
court reviewed the videotape of the police interview and denied the motion to suppress.

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The jury trial began on February 5, 2013. The State presented testimony from
Dodd, Grindley, and M.M. In her testimony, M.M. admitted that she had engaged in
prostitution and that she had advertised on Backpage. She stated that she began engaging
in prostitution in January 2011, prior to meeting Neloms. M.M. testified that from
January until April or May 2011, she had worked for a pimp named Chris, but after that
she worked independently.

M.M. testified that Neloms did not provide her a phone to arrange prostitution, nor
did he tell her how to post on Backpage. Backpage charged a fee to post and M.M. used
Starnes' mother's credit card, which she testified "everybody used" because it "was just
floating around." Neloms lived with Starnes, Parks, their mother, and Parks' son. If
Neloms had possession of the card when M.M. needed it, she would get the card from
him. M.M. acknowledged her testimony at a previous hearing that Neloms knew that she
used the credit card to advertise on Backpage.

M.M. did not have a driver's license. She testified that Starnes and Parks
sometimes drove her to meetings with johns—the men who paid her for sex—and M.M.
gave them gas money. M.M. testified that Neloms drove her once to see a john, but she
was unsure whether Neloms knew that was the purpose of the trip. M.M. admitted that at
a previous hearing she had testified that when she needed Starnes or Parks to give her a
ride to meet a john, she would either ask them or ask Neloms to ask them. M.M. also
admitted that she had called Neloms for help once when she was afraid of a john. Neloms
came to help, but the john left before he arrived.

Regarding her sexual relationship with Neloms, M.M. testified inconsistently. She
first testified that she never had sex with Neloms, then testified that she did not remember
having sex with him but she could have, then testified that she did not "remember having
sex with him the first time." She acknowledged, however, that at a prior hearing, she had
testified that she had sex with Neloms more than twice and at least once after she turned
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15 years old. On cross-examination, she testified she did not think she had sex with
Neloms and she felt her prior testimony was untrue because she "[felt] like [she] would
remember sleeping with him."

M.M. testified that on the night she was arrested for prostitution, she was staying
with her friend Victoria, but Starnes and Parks later gave her a ride to the Motel 6. She
testified that she was meeting a john who had contacted her because of the Backpage
advertisement she had posted using Neloms' mother's computer and credit card. At the
motel, Starnes paid to rent the room because M.M. was not old enough to do so. M.M.
had sex with the john, and he paid her $100.

M.M. testified that she did not work for Neloms, she did not give him a percentage
of her earnings, and she did not feel that he was her pimp. M.M. took calls in response to
her Backpage advertisements, she set up meetings with johns, and she set the prices.
Neloms did not pay for the motel room. M.M. admitted that she had told the john on the
night in question that she had a pimp. M.M. also admitted that she and Starnes had a
conversation in December 2011 about how Starnes was going to tell law enforcement that
she was M.M.'s pimp, not Neloms, so that Neloms would no longer be in trouble.

The State called Bauman who testified about his interview with M.M. and also
explained some terminology of the sex trade to the jury. He defined a "john" as
"somebody who goes out and pays for sex [with] a prostitute," a "pimp" as "the person
who is the sex trafficker," and a "bottom bitch" or "bottom girl" as a prostitute who is
"second in command and kind of runs the show while [the pimp] is gone."

The State also presented testimony from Frobenius, Drzymalla, a crime scene
investigator who helped search Neloms' home, the forensic scientist who conducted the
DNA analysis, and Miller. In conjunction with Miller's testimony, the State introduced
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into evidence the stack of papers called "Bottom Bitch," including a sexually explicit
story whose narrator was a pimp. Neloms did not present any evidence at the trial.

After the evidence was presented, the State amended the information to add a
count of promoting prostitution in the alternative to the count of aggravated human
trafficking. The jury found Neloms guilty of aggravated human trafficking, promoting
prostitution, and one count of aggravated indecent liberties with a child and acquitted him
on the second count of aggravated indecent liberties with a child. The district court did
not convict Neloms of promoting prostitution, however, because it was charged as an
alternative to aggravated human trafficking.

Neloms filed a motion for new trial. On April 10, 2013, Neloms filed a pro se
motion to dismiss counsel. The following day, the district court sentenced Neloms to 620
months' imprisonment for aggravated human trafficking and 59 months' imprisonment for
aggravated indecent liberties with a child, with the sentences to run concurrently. The
district court imposed lifetime postrelease supervision for each conviction. Neloms
timely appealed the district court's judgment.

MOTION TO SUPPRESS STATEMENTS

Neloms first argues that the district court erred when it denied his motion to
suppress statements he made to Miller. As a threshold matter, however, the State claims
that this issue is not properly before this court because Neloms failed to object to the
admission of the statements at trial.

Prior to trial, Neloms filed two motions in limine that challenged statements he
made during a police interview with Miller. Without much explanation, he argued that
the statements were involuntary. The district court addressed the issue at two pretrial
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hearings, considering additional argument and testimony from Neloms. The district court
took the matter under advisement in order to review the videotape of the interview.

On February 11, 2013, the district court filed an order denying Neloms' motion to
suppress the statements. The district court specifically found that Neloms had freely and
voluntarily made the statements after a knowing and intelligent waiver of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After the trial
began but prior to Miller testifying about his interview with Neloms, Neloms asked the
district court to remind Miller "of the order in limine because there were a lot of things
that were brought up during the interview and I would ask that he be reminded there are
certain areas he's not to talk about." The State agreed to do so, and Miller proceeded to
testify at trial that Neloms had admitted to having sex with M.M. Neloms made no
objection to this testimony during the trial.

Neloms now argues that the district court's denial of his motion to suppress was
error. But as the State points out, Neloms has failed to preserve this issue for appeal.

"Under K.S.A. 60-404, 'a party must lodge a timely and specific objection to the
admission or exclusion of evidence in order to preserve the evidentiary question for
review.' State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). . . . 'Because an in limine
ruling "is subject to change when the case unfolds," [citation omitted] a pretrial objection
must be contemporaneously renewed during trial or preserved through a standing
objection.' [Citation omitted.]" State v. Richard, 300 Kan. 715, 720-21, 333 P.3d 179
(2014).

Neloms argues that his request that Miller be reminded of the limits on his
testimony satisfies the contemporaneous objection requirement because the motion in
limine had asked that Neloms' interview statements be suppressed. This argument fails
because the district court denied that portion of the motion in limine. The district court
placed no restrictions on Miller's testimony concerning his interview with Neloms.
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Accordingly, there was no court-imposed limitation on that testimony about which to
remind Miller. Neloms' pretestimony request to remind Miller of the ruling on the motion
in limine did not preserve this issue for appeal.

Neloms also contends that this court should address the issue on its merits because
it "involve[s] facts that are not in dispute and made from a fully developed record and is
necessary to prevent a denial of a constitutional right." Neloms bases his argument on
recognized exceptions to the general rule that this court will not consider issues for the
first time on appeal. See State v. Swint, 302 Kan. 326, 335, 352 P.3d 1014 (2015)
(identifying rule and listing exceptions). Our Supreme Court has rejected this argument:

"[W]e have applied the timely and specific objection requirement even in cases where an
evidentiary claim involved a defendant's constitutional rights. [Citation omitted.] We
have held that if we were to overlook the lack of objection in such circumstances, 'these
and other caselaw exceptions would soon swallow the general statutory rule.' [Citation
omitted.]" State v. Moore, 302 Kan. ___, ___, 357 P.3d 275, 286 (2015).

Stated differently, there are three exceptions to the general rule that an appellate
court will not consider issues for the first time on appeal. However, none of these
exceptions trumps the contemporaneous objection requirement under K.S.A. 60-404 in
order to preserve an evidentiary issue for appeal.

Our Kansas Supreme Court has made it clear that a party must lodge a
contemporaneous objection at trial in order to preserve an evidentiary issue for appeal.
See King, 288 Kan. at 348. The Court of Appeals is duty bound to follow Kansas
Supreme Court precedent, absent some indication the Supreme Court is departing from
its previous position. State v. Vrabel, 301 Kan. 797, 809-10, 347 P.3d 201 (2015). There
is no indication that our Supreme Court is reconsidering its position on this rule. Thus,
we conclude that Neloms has failed to preserve this issue for appeal.

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AMENDED COMPLAINT DURING TRIAL

Next, Neloms argues that the district court violated his due process rights by
allowing the State to amend the complaint after the close of evidence at trial to add the
alternative charge of promoting prostitution, a new crime, which caused Neloms
prejudice. The State argues that this claim is meritless because the same evidence
supported both crimes and Neloms suffered no prejudice from the amendment.

Just prior to beginning jury selection, the State moved to amend the complaint to
charge promoting prostitution as an alternative to aggravated human trafficking. Neloms
objected, arguing that he had built his defense around the charge of aggravated human
trafficking, so allowing the State to amend the charges on the morning of trial would be
unfairly prejudicial. The district court took the request under advisement. After the close
of evidence, the district court granted the State's motion, finding that there was "enough
evidence to support both the alternative counts and . . . the proper way to proceed is to
present both those counts to the jury." Accordingly, the State filed an amended
information, charging one count of aggravated human trafficking or, in the alternative,
one count of promoting prostitution, as well as two counts of aggravated indecent
liberties with a child.

K.S.A. 22-3201(e) states: "The court may permit a complaint or information to be
amended at any time before verdict or finding if no additional or different crime is
charged and if substantial rights of the defendant are not prejudiced." This court reviews
the decision to allow an amendment for an abuse of discretion, which the defendant bears
the burden to establish. State v. Holman, 295 Kan. 116, 145, 284 P.3d 251 (2012). The
district court abuses its discretion if no reasonable person would take the district court's
view. 295 Kan. at 145.

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Our Supreme Court has explained that even "the charging of a different crime may
be allowed via an amended complaint before trial, provided the substantial rights of the
defendant are not prejudiced." State v. Bischoff, 281 Kan. 195, Syl. ¶ 7, 131 P.3d 531
(2006); see also State v. Calderon-Aparicio, 44 Kan. App. 2d 830, 847, 242 P.3d 1197
(2010), rev. denied 291 Kan. 914 (2011). Bischoff speaks directly to pretrial amendments,
but the principle applies to midtrial amendments as well, as this court has noted. In State
v. Spangler, 38 Kan. App. 2d 817, 824, 173 P.3d 656 (2007), while reviewing an
amendment of a complaint made just before the completion of the State's case at trial, this
court recognized that when considering the amendment of a complaint or information "at
any time before verdict," prejudice is the controlling factor.

Neloms argues that the amendment prejudiced him because he had prepared a
defense to the charge of aggravated human trafficking, a crime distinct from promoting
prostitution, and the amendment occurred during the trial. While generally asserting that
the late amendment prejudiced his ability to defend against promoting prostitution,
Neloms offers no specific explanation of how the late amendment hindered him. On the
other hand, the State persuasively asserts that Neloms' defense was equally effective as a
defense to both charges. As Neloms said in his opening statement, the defense theory was
"that [M.M.] was what she was and it had nothing to do with Mr. Neloms." If the jury had
believed this defense, it would have acquitted Neloms of aggravated human trafficking
and promoting prostitution.

Most significantly, adding the charge of promoting prostitution did not prejudice
Neloms because although the jury found him guilty of the alternative charge, the district
court did not convict him of the crime or sentence him for it. Instead, the district court
sentenced Neloms only for his conviction of aggravated human trafficking. Essentially,
Neloms' claim on appeal is moot. There was no actual prejudice as a result of the
amendment. Accordingly, Neloms' argument fails.

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IS PROMOTING PROSTITUTION THE MORE SPECIFIC CRIME OF
AGGRAVATED HUMAN TRAFFICKING?

Next, Neloms contends that the district court erred by entering a conviction for
aggravated human trafficking when the State's evidence supported a conviction for the
more specific crime of promoting prostitution. Neloms and the State both acknowledge
that our Supreme Court rejected a similar argument in State v. Williams, 299 Kan. 911,
928-33, 329 P.3d 400 (2014). Neloms strives to distinguish his situation from that in
Williams, while the State points out the similarities.

The rule "that a general statute should yield to a more specific statute covering the
same criminal" conduct is a rule of statutory interpretation courts use to determine which
statute the legislature intended to apply in particular circumstances. 299 Kan. at 930.
Whether this rule applies is a question of law over which this court exercises unlimited
review. 299 Kan. at 930. Although a general statute normally must yield to a specific
statute covering the same criminal conduct, the rule "'must yield where there is a clear
indication that the legislature did not intend for one statute to be the exclusive mechanism
for punishing a given activity.' [Citations omitted.]" 299 Kan. at 930.

The controlling case, Williams, went before our Supreme Court on a petition for
review of a decision from this court in which this court had used alternative means
analysis to determine whether the defendant should have been convicted of promoting
prostitution. See 299 Kan. at 916, 928. The Williams court recognized that if it also
engaged in alternative means analysis, it would have to follow a different analytical
procedure than this court did, due to changes in the approved analysis of alternative
means issues. 299 Kan. at 930. The Williams court concluded: "We need not sort out all
of these arguments and developments, however, because we conclude there is a more
straightforward answer: The legislative intent was not to have promoting prostitution
control over aggravated trafficking." 299 Kan. at 930.
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Legislative history showed that the legislature was aware "there would be overlap
between aggravated trafficking and other criminal offenses but were told the
comprehensive aggravated trafficking provision was needed." 299 Kan. at 931. In
reviewing this and other legislative history, the Williams court held that the legislature's
action was "indicative of the intent to cover a wide range of activities." 299 Kan. at 931-
32. Applying that conclusion to the issue before it, the Williams court stated: "Although
the State's evidence may have been sufficient to sustain a charge against Williams for
promoting prostitution, his conduct went beyond the behaviors targeted by that provision
and more clearly fall within the scope of conduct the legislature intended to criminalize
through the aggravated trafficking statute." 299 Kan. at 932.

A finding that promoting prostitution was a more specific offense of aggravated
human trafficking would allow an individual who traffics minors for prostitution to serve
a shorter sentence than an individual who traffics minors for other sexual exploitation.
299 Kan. at 933. As the Williams court recognized, "[I]t flies in the face of logic to
assume the legislature intended to afford less protection to those minors trafficked for
prostitution than those trafficked for other forms of sexual exploitation, especially given a
legislative record replete with testimony about traffickers luring young girls into
prostitution rings." 299 Kan. at 933. Accordingly, the Williams court held that under the
facts of the case, promoting prostitution was not a more specific crime. 299 Kan. at 933.

Neloms attempts to distinguish his case from Williams by pointing out factual
dissimilarities: M.M. did not give the money she earned to Neloms, he did not set her
prices, she was free to move around at her will, etc. Neloms contends that these examples
illustrate that the exploitation present in Williams was not present here.

When read carefully, however, Williams' analysis does not lend itself to fact-
specific, case-by-case application. In Williams, our Supreme Court held that the
legislature did not intend for promoting prostitution to be a more specific offense of
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aggravated human trafficking. The legislative history included explicit discussion of
human trafficking in the context of prostitution, and it does not make sense to conclude
that the legislature intended to punish people guilty of trafficking minors for prostitution
less severely than those guilty of trafficking minors for other sexual exploitation. Because
Williams held that promoting prostitution is not a more specific offense of aggravated
human trafficking, Neloms' argument to the contrary must fail. See Vrabel, 301 Kan. at
809-10 (Court of Appeals is duty bound to follow Kansas Supreme Court precedent).

IS AGGRAVATED HUMAN TRAFFICKING STATUTE UNCONSTITUTIONALLY OVERBROAD?

Next, Neloms asserts that the aggravated human trafficking statute is
unconstitutionally overbroad as applied to his case. He concedes that he did not raise this
claim in the district court and that constitutional issues are not properly raised for the first
time on appeal, except under certain circumstances. See State v. Godfrey, 301 Kan. 1041,
1043, 350 P.3d 1068 (2015). Neloms argues that two exceptions to this general rule
apply: (1) the issue involves only a question of law and is finally determinative of the
case and (2) review is necessary to prevent the denial of a fundamental right.

Our Supreme Court previously has addressed an overbreadth argument for the first
time on appeal in order to prevent the denial of a fundamental right. See State v.
Zabrinas, 271 Kan. 422, 427, 24 P.3d 77 (2001). Following this lead, we will consider
Neloms' constitutional claim for the first time on appeal.

"Whether a statute is constitutional is a question of law subject to unlimited
review. [Citation omitted.] This court presumes that statutes are constitutional and
resolves all doubts in favor of passing constitutional muster. If there is any reasonable
way to construe a statute as constitutionally valid, this court has both the authority and
duty to engage in such a construction. [Citation omitted.]" State v. Bollinger, 302 Kan.
309, 318, 352 P.3d 1003 (2015).

15

Our Supreme Court has explained the nature of an unconstitutionally overbroad
statute:

"Where conduct and not merely speech is involved, the United States Supreme Court
requires that 'the overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep.' [Citation omitted.] [Our
Supreme Court] has divided this burden into a two-part test. The party attacking the
constitutionality of a statute on the basis of overbreadth must establish '(1) the protected
activity is a significant part of the law's target, and (2) there exists no satisfactory method
of severing that law's constitutional from its unconstitutional applications.' [Citation
omitted.]" Williams, 299 Kan. at 920.

The statute in question here, K.S.A. 2010 Supp. 21-3447(a)(2), prohibits
aggravated human trafficking, which is committed by "recruiting, harboring, transporting,
providing or obtaining, by any means, a person under 18 years of age knowing that the
person, with or without force, fraud, threat or coercion, will be used to engage in forced
labor, involuntary servitude or sexual gratification of the defendant or another." In
Williams, our Supreme Court rejected the argument that the statute was unconstitutionally
overbroad on its face. See 299 Kan. at 919-24.

Neloms acknowledges this holding and attempts to avoid it by characterizing his
claim as an as-applied challenge. He first claims that the statute "failed to provide fair
warning that [his] behavior fell within the confines of the law." But this argument goes to
the vagueness of a statute, not its breadth. See State v. McCune, 299 Kan. 1216, 1235,
330 P.3d 1107 (2014) ("[A] statute is unconstitutionally vague when it fails to give
adequate warning as to the proscribed conduct. [Citation omitted.]").

Neloms next contends that the aggravated human trafficking statute prohibits the
constitutionally protected conduct of speech, travel, and association through its language
prohibiting "recruiting, . . . transporting, providing or obtaining" a minor knowing that
16

the minor "will be used to engage in . . . sexual gratification of the defendant or another."
See K.S.A. 2010 Supp. 21-3447(a)(2). He claims that these prohibitions could prohibit
"association and speech with [M.M.] if he helps her out by any means and is aware that
she may borrow his house, car, computer, money to aid her own prostitution endeavors."

There are several problems with Neloms' argument. First, in an as-applied
challenge, Neloms must restrict his challenge to his circumstances. Because he was
convicted under the provision of the aggravated human trafficking statute that prohibits
"transporting," it is the only relevant provision at issue. See Cross v. Kansas Dept. of
Revenue, 279 Kan. 501, 507-08, 110 P.3d 438 (2005) (holding that as-applied argument
may only challenge statute's constitutionality "insofar as it has an adverse impact on his
own rights"). Second, Neloms does not identify any constitutional provision that protects
his actions. Simply put, transporting a minor with the knowledge that she will be used for
the sexual gratification of another is not a constitutionally protected right.

Third, Neloms' arguments regarding the level or lack of exploitation present in his
relationship with M.M. appear immaterial to the question of overbreadth and Neloms
does not explain their relevance. Finally, the arguments that Neloms raises are identical
to those rejected in Williams, and this court is duty-bound to follow Kansas Supreme
Court precedent. See Vrabel, 301 Kan. at 809-10.

As stated above, the test for whether a statute is unconstitutionally overbroad is
whether "'(1) [constitutionally] protected activity is a significant part of the law's target,
and (2) there exists no satisfactory method of severing that law's constitutional from its
unconstitutional applications.' [Citation omitted.]" See Williams, 299 Kan. at 920.
Neloms has failed to show that the statute targeted or hindered his engaging in any
constitutionally protected activity. Therefore, his challenge fails.


17

IS AGGRAVATED HUMAN TRAFFICKING STATUTE UNCONSTITUTIONALLY VAGUE?

Next, Neloms contends that the aggravated human trafficking statute is
unconstitutionally vague. Neloms concedes that he did not argue vagueness in the district
court, but he again argues that the issue involves only a question of law and is finally
determinative of the case and review is necessary to prevent the denial of a fundamental
right. We will consider the merits of Neloms' claim based on those exceptions.

"Whether a statute is constitutional is a question of law subject to unlimited
review. [Citation omitted.] This court presumes that statutes are constitutional and
resolves all doubts in favor of passing constitutional muster. If there is any reasonable
way to construe a statute as constitutionally valid, this court has both the authority and
duty to engage in such a construction. [Citation omitted.]
"A statute is unconstitutionally vague if it fails to give adequate warning of the
proscribed conduct, that is to say, that it '"fails to provide a person of ordinary
intelligence fair notice of what is prohibited."' [Citation omitted.] A statute is also
unconstitutionally vague if it fails to protect against arbitrary enforcement. [Citation
omitted.] Violation of either aspect of these predictability requirements is grounds for
invalidating a statute. [Citation omitted.]
"Thus, the test to determine whether a criminal statute is so vague as to be
unconstitutional entails two related inquiries: (1) whether the statute gives fair warning
to those potentially subject to it, and (2) whether it adequately guards against arbitrary
and unreasonable enforcement. [Citation omitted.] 'At its heart the test for vagueness is a
commonsense determination of fundamental fairness.' [Citation omitted.]" Bollinger, 302
Kan. at 318.

K.S.A. 2010 Supp. 21-3447(a)(2), prohibits aggravated human trafficking, which
is committed by "recruiting, harboring, transporting, providing or obtaining, by any
means, a person under 18 years of age knowing that the person, with or without force,
fraud, threat or coercion, will be used to engage in forced labor, involuntary servitude or
sexual gratification of the defendant or another." (Emphasis added.) Neloms asserts that
the statute is unconstitutionally vague because it does not adequately define the terms
18

"used" and "sexual gratification." As the State notes, however, our Supreme Court has
rejected this argument with respect to the word "used."

In Williams, despite first holding that the defendant did not have standing to argue
that the aggravated human trafficking statute was unconstitutionally vague, our Supreme
Court addressed as part of its overbreadth analysis the vagueness argument with regard to
the statute's failure to define "used." See 299 Kan. at 919, 921. The Williams court
explicitly concluded that "the word's context makes its meaning clear, and its meaning
limits the scope of K.S.A. 21-3447(a)(2). Specifically, the phrase 'used to engage in
forced labor, involuntary servitude or sexual gratification' indicates the statute is limited
to situations where a minor has been exploited." 299 Kan. at 921.

Neloms also argues that the failure to define "sexual gratification" renders the
statute unconstitutionally vague. This court previously has rejected this argument. See
State v. Williams, 46 Kan. App. 2d 36, 44-45, 257 P.3d 849 (2011), aff'd on other
grounds 299 Kan. 911, 329 P.3d 400 (2014). The panel stated:

"Williams is correct that K.S.A. 21-3447 does not expressly define the term
'sexual gratification.' However, we may look at how the term has been used in other
contexts within the Kansas statutes for guidance. The Kansas Offender Registration Act
requires those who have committed certain specified sex offenses to register on publicly
available lists. See K.S.A. 2010 Supp. 22-4902; K.S.A. 2010 Supp. 22-4904(a)(1). A sex
offender includes a person convicted of a 'sexually violent crime.' K.S.A. 2010 Supp. 22-
4902(b)(c). A 'sexually violent crime' includes certain specified crimes, as well as
"'any act which at the time of sentencing for the offense has been determined
beyond a reasonable doubt to have been sexually motivated. As used in this
subparagraph, "sexually motivated" means that one of the purposes for which the
defendant committed the crime was for the purpose of the defendant's sexual
gratification.' K.S.A. 2010 Supp. 22-4902(c)(16).
"The term 'gratify' is defined as 'to please or satisfy.' Webster's II New College
Dictionary 486 (1999). Our court has had no difficulty in determining that certain crimes
19

were committed for a defendant's sexual gratification. See, e.g., State v. Gallardo, 43
Kan. App. 2d 346, 352, 224 P.3d 1192 (2010) (finding that conviction for unlawful
sexual relations was committed for defendant's sexual gratification); State v. Chambers,
36 Kan. App. 2d 228, 240, 138 P.3d 405, rev. denied 282 Kan. 792 (2006) (finding that
conviction of burglary was committed for defendant's sexual gratification where
defendant broke into residences for the sole purpose of stealing women's lingerie to
facilitate masturbation); State v. Lopez, 25 Kan. App. 2d 777, 778, 973 P.2d 802 (1998),
rev. denied 266 Kan. 1113 (1999) (finding that crime of attempted aggravated burglary
was sexually motivated where victim awoke in the middle of the night to find defendant
standing over her naked); State v. Patterson, 25 Kan. App. 2d 245, 251, 963 P.2d 436,
rev. denied 265 Kan. 888 (1998) (finding that conviction of burglary and theft in
connection with stealing woman's underwear was sexually motivated where defendant
kept the underwear in a locked cabinet containing pornographic material). As
demonstrated by these decisions, the absence of a specific definition in K.S.A. 21-3447
does not force a person of ordinary intelligence to guess as to the meaning of the term
'sexual gratification.'" Williams, 46 Kan. App. 2d at 44-45.

We find this reasoning to be sound and we adopt this reasoning to deny Neloms'
claim that the term "sexual gratification" renders the statute unconstitutionally vague. For
these reasons, Neloms' vagueness claims fail.

JURY INSTRUCTION ON AGGRAVATED HUMAN TRAFFICKING

Next, Neloms contends that the district court erred in failing to instruct the jury
that, in the aggravated trafficking statute, the word "used" means "exploited through an
abuse of power." Neloms claims that there was a very real possibility that if the district
court had so instructed the jury, the jury would have acquitted him. The State argues that
the wording of the statute makes the meaning of "used" clear, so there was no need to
instruct the jury on the definition.

20

Neloms concedes that he did not request the definitional instruction in the district
court. Therefore, as both parties acknowledge, this court reviews for clear error. See State
v. Brammer, 301 Kan. 333, 341, 343 P.3d 75 (2015).

"'To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record.
"'If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the degree
of prejudice necessary for reversal.' [Citation omitted.]" State v. Smith-Parker, 301 Kan.
132, 163-64, 340 P.3d 485 (2014).

The district court instructed the jury that in order to find Neloms guilty of
aggravated human trafficking, the State had to prove that Neloms "transported a person
under 18 years of age knowing that the person, with or without force, fraud, threat, or
coercion, would be used to engage in sexual gratification of the defendant or another."
Neloms contends that the district court should have instructed the jury that "used" meant
"exploited through an abuse of power." He bases this argument on our Supreme Court's
holding in Williams, 299 Kan. at 921, that the context of the word "used" in the
aggravated human trafficking statute "makes its meaning clear, and its meaning limits the
scope of K.S.A. 21-3447(a)(2). Specifically, the phrase 'used to engage in forced labor,
involuntary servitude or sexual gratification' indicates the statute is limited to situations
where a minor has been exploited. [Citation omitted.]"

Neloms contends that a jury likely would not know that this is the intended
meaning of the word "used" without instruction from the district court and that since the
21

court did not define "used" for the jury, the jury did not understand the limitations of the
statute. Our Supreme Court has held:

"[A] trial court 'need not define every word or phrase in the instructions. It is only when
the instructions as a whole would mislead the jury, or cause them to speculate, that
additional terms should be defined.' [Citation omitted.] . . . '[A] term which is widely
used and which is readily comprehensible need not have a defining instruction.' [Citation
omitted.]" State v. Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014).

The Williams court held that the context of the word "used" within the statute
made its meaning clear. 299 Kan. at 921. Although Williams examined "used" as part of a
challenge based on the statute's purported unconstitutional vagueness, the holding is
applicable here as well. If the meaning of the word "used" in the statute is clear from its
context for purposes of vagueness analysis, it is also readily comprehensible by a jury
and does not need a defining instruction. Thus, the district court did not err in failing to
sua sponte define "used" for the jury. See State v. Thomas, No. 111,621, 2015 WL
4094260, *5-6 (Kan. App. 2015) (unpublished opinion) (rejecting argument that district
court should have instructed jury on definition of "used" in an aggravated human
trafficking prosecution), rev. denied 303 Kan. ___ (December 14, 2015).

EVIDENTIARY ISSUE

Next, Neloms argues that the district court erred by allowing into evidence a
novella allegedly written by Neloms. To fully appreciate the argument, additional
background facts are necessary.

During the trial, outside the jury's presence, the State informed the district court
that the following morning it intended to introduce into evidence what the State called a
novella, entitled "Bottom Bitch," which was part of papers Miller discovered in a
portfolio found in Neloms' home. In addition to the novella, the proposed exhibit also
22

included (1) copies of M.M.'s high school identification card; (2) copies of the packaging
for cell phones; (3) copies of a Vision card, Neloms' social security card, a skylight card,
and a foot locker VIP card; (4) a copy of Parks' Kansas identification card; (5) a list titled
"Bargain Books" of books on sex, business, and pimping; (6) a disclaimer page stating
that contacting the author by phone constituted an agreement that the reader was not a
member of any law enforcement agency and that any donations were for the author's time
only"; (7) a list of websites; (8) a list of names titled "Characters"; (9) another list of
names with numbers next to them—for example, "Ashlie = 9"; (10) a page entitled "Tha
[sic] Doll Palace," which appears to be a list of job titles and duties—for example, the
page states, "My bottom beauty: answers tha [sic] phone, keeps postings updated, stays
on top of emails . . . , books all appointments, hair, nails, calls, etc. sets up car washes . . .
"; (11) a dedication, dated October 18, 2010, to Haley Lucero from Michael Neloms, with
a poem on the reverse side of that page; and (14) another list of names.

The novella itself tells the sexually explicit story of a pimp named Dre having sex
with various women who work for him. Dre runs an escort service, and Dre splits call
money with the women. He has his "girls" drive each other to calls and one brings in
another to work for him. Of special importance to the State were two references to "T.T."
in the story. They are:

"10 minutes later I pull up at tha crib, I walk in and see T.T. locked in tha cage 'what you
put T.T. in tha cage for?' "that bitch chewed up one of my heels" 'tha ones I just bought
you?' "naw an old pair, but still, I liked those heels" 'Aw, I'll get you some more don’t
trip'
. . . .
". . . when she leaves I let T.T. out tha cage cuz she knows better than ta chew on
anything but her toys when I'm around. she only pull that wit Violet."

Neloms objected to the admission of the documents as irrelevant. At the district
court's request, the State provided the court and Neloms with copies of its proposed
23

exhibit. After ruling that the other papers were admissible, the district court turned to the
admissibility of the novella. The judge stated:

"The whole—the writings and the drawing in the beginning and so forth are of
somewhat higher concern because their probative value may be less because they do not
appear to be directly related to this case. But I think that I'm going to admit them. I do
think they are probative. I think they provide information to the jury that's probative. And
while they are prejudicial I think they are more probative than prejudicial and they do
concern the head on the issues in this case of human trafficking, trafficking and
prostitution, the slang terms used in the trade and so forth. And so based upon that I will
go ahead and allow the items that are made and part of the package in Exhibit 101 to be
admitted."

Neloms then challenged the foundation for admitting the documents and the
State's implied assertion that Neloms had written the novella. The State argued that the
novella was relevant and admissible even without asserting Neloms was the author
because it had been found with his belongings and it described the sort of behavior
underlying the charges. The judge replied:

"I guess the way I view this is not necessarily in this circumstance that anybody
is claiming that Mr. Neloms himself particularly wrote or did not write any of this. I do
think there is significant evidentiary value because it is in his house, in a portfolio that
clearly has other items that are tied very closely to him, and the writing themselves, the
drawings, directly relate to what he's charged with in this case. . . . [I]f someone is
suspected of shoplifting and as part of the search of their residence there are drawings of
the store or there are articles written by other people published on the internet on how to
avoid theft detection devices, obviously those would not have been things written by the
suspect, but they would be very probative. Now, they certainly are prejudicial. And if
these items were found in Mr. Neloms' possession and he was charged with an armed
robbery, then they would still be prejudicial, but they certainly would have very low
probative value with regard to the charge of armed robbery. And so overall that's the way
I'm viewing this situation is that these items were found along with other items in his
24

residence in a portfolio that had his own social security card amongst other things. And
so that's in general the way I'm viewing this and that's why I think they have the
significant probative value that they do."

When the State introduced the documents at trial, including the novella, they were
designated State's Exhibit 39. Neloms renewed his previous objection, which the district
court noted and overruled. Miller testified and identified the novella as papers he had
found in the portfolio. The State did not elicit testimony about the content of the novella.
On cross-examination, Neloms elicited testimony that the papers found in the portfolio
had included a water bill in Starnes' name and a photocopy of Parks' identification card.

Neloms now contends that the novella was irrelevant, so its admission into
evidence was reversible error. In response, the State argues that the novella was not so
prejudicial as to outweigh its probative value. In the alternative, the State contends that
any error in admitting the novella was harmless.

When considering the admissibility of evidence, the first consideration is
relevance. State v. Greene, 299 Kan. 1087, 1093, 329 P.3d 450 (2014). Relevant evidence
is "'evidence that is probative and material.'" Our Supreme Court has defined relevant
evidence as evidence "which has 'any tendency in reason to prove any material fact.'
[Citation omitted.]" See State v. Coones, 301 Kan. 64, 78, 339 P.3d 375 (2014). This
court reviews probativity decisions for an abuse of discretion and reviews materiality
decisions de novo. Greene, 299 Kan. at 1093. The second step is determining if other
rules of evidence or legal principles apply. 299 Kan. at 1093. If they do, the third step is
applying them and the standard of review depends on the rule being applied. 299 Kan. at
1093. Finally, if there was error in the district court's analysis of the rules of evidence,
this court must decide whether the error was harmless. 299 Kan. at 1095.

25

Neloms asserts, as he did in the district court, that the evidence was irrelevant. He
relates the objections and arguments made in the district court, adding nothing new on
appeal. He explains that trial counsel objected to admission because the novella was
found with documents that did not all belong to Neloms, such as identification cards for
M.M. and Starnes; other people had access to the portfolio; there was no evidence that
Neloms wrote the story, lists, or poem or drew the picture; the story was dated prior to
the crimes alleged in this case; the only reference to T.T. was a dog named T.T.; and the
State did not introduce into evidence all of the papers found within the portfolio.

The district court properly addressed all of these arguments below, and Neloms
does not offer specific argument or additional legal authority as to how the district court's
conclusions were incorrect. Regarding Neloms' complaint that the State did not introduce
into evidence every paper found in the portfolio, Neloms could have introduced the
remainder of the papers himself, as the district court pointed out to him prior to admitting
any of the documents. As the State argues, the rest of Neloms' specific complaints go to
the weight of the evidence rather than its admissibility. See State v. Winston, 281 Kan.
1114, 1128-29, 135 P.3d 1072 (2006) (explaining that arguments that address the
"convincing" nature of evidence go to weight rather than admissibility).

All relevant evidence is admissible unless applicable rules of evidence prohibit
admission. See K.S.A. 60-407(f); State v. Huddleston, 298 Kan. 941, 959, 318 P.3d 140
(2014). Here, the district court correctly found that the novella was relevant because it
tended to show Neloms' knowledge of the world of prostitution and human trafficking, a
material issue because Neloms' theory of defense was that he was ignorant of and not
involved in M.M.'s prostitution. Thus, Neloms' argument that the district court should
have excluded the evidence as irrelevant fails.



26

MOTION TO APPOINT NEW COUNSEL

The day before sentencing, Neloms filed a pro se motion to dismiss counsel.
Neloms asserted that counsel had (1) "purposely ignored [Neloms'] numerous request[s]
for important information pertaining to [Neloms'] case"; (2) failed to act with the
commitment, dedication, and zeal required by ethical rules; and (3) failed to review "any
of the motions that [have] been submitted" or respond to Neloms' attempts to
communicate with counsel, leaving Neloms unaware of the status of his case. Neloms
claimed there had been a complete breakdown in communication and that he had not
received the constitutionally guaranteed effective assistance of counsel.

At the sentencing hearing, defense counsel asked for a continuance and informed
the district court that Neloms had just told him that Neloms' family was attempting to
retain different counsel for sentencing and appeal; counsel said it was the first he had
heard of it. Defense counsel expressed his belief that if Neloms was dissatisfied with his
representation and Neloms' family wanted to retain other counsel, the court should allow
it. The State opposed the request, pointing out that Neloms had had 9 weeks since the
trial to retain a new attorney and had not done so; the State believed Neloms was merely
trying to delay the proceedings. The district judge then said, "[Defense counsel], I'll let
you or Mr. Neloms set forth anything you would like to with regard to his request at this
time." Defense counsel identified the attorney Neloms' family had contacted; Neloms
personally made no statement. The district court denied the request for a continuance.

Later in the hearing, the district court judge asked Neloms directly whether he
knew any reason the court should not pronounce sentence. Neloms told the judge that he
felt that the State had violated his right to a speedy trial, that he was unhappy that his
attorney had not raised the speedy trial issue, that he felt all of his motions had been
unfairly denied, and that he felt there was insufficient evidence to support his conviction.
Immediately before pronouncing sentence, when the district court gave Neloms yet
27

another opportunity to speak, he again raised the sufficiency of the evidence and his
speedy trial rights. Neloms stated: "I've been addressing with all my attorneys about all
my issues. None of my issues are getting raised, none of my arguments, nothing gets
pushed in court. Everything I have gets denied," Neloms otherwise made no reference to
dissatisfaction with counsel. The district court then pronounced sentence.

Six days after sentencing, the State filed a response to the pro se motion for new
counsel, arguing that it was moot because Neloms' appointed counsel had filed an appeal.
On April 29, 2013, the district court filed a motion minutes sheet denying the motion for
new counsel, stating: "[Defendant] files request for trial counsel, when case is on appeal
and [defendant] has been afforded appellate counsel at this time[.]"

Neloms now argues that the district court violated his Sixth and Fourteenth
Amendment rights to conflict-free representation by denying his pro se motion to dismiss
counsel. He contends that the district court failed to adequately inquire into the conflict
between Neloms and counsel that the motion disclosed. According to Neloms, this failure
left him without conflict-free counsel to argue posttrial motions and represent him at
sentencing. The State argues that the record does not support the assertion that the district
court was aware of Neloms' pro se motion, which was filed the day before sentencing.

"[B]oth our federal and state constitutions guarantee the right of criminal defendants to
have the assistance of counsel. That right to counsel 'requires more than the presence of
an attorney; it guarantees the right to effective assistance from the attorney.' (Emphasis
added.) [Citation omitted.]
"Yet, our constitutions do not guarantee the defendant the right to choose which
attorney will be appointed to represent the defendant. If a defendant seeks substitute
counsel, the defendant 'must show "justifiable dissatisfaction" with his or her appointed
counsel,' which can be 'demonstrated by showing a conflict of interest, an irreconcilable
disagreement, or a complete breakdown in communication between counsel and the
defendant.' [Citation omitted.] The defendant bears the responsibility of providing '"an
articulated statement of attorney dissatisfaction,"' which will, in turn, '"trigger the district
28

court's duty to inquire into a potential conflict"' of interest. (Emphasis added.) [Citations
omitted.]" State v. Brown, 300 Kan. 565, 574-75, 331 P.3d 797 (2014).

This court reviews a district court's actions on a motion to dismiss counsel and
appoint new counsel for an abuse of discretion. See State v. Pfannenstiel, 302 Kan. ___,
357 P.3d 877, 887-88 (2015). A district court may abuse its discretion in this context in
three ways: (1) becoming aware of a potential conflict of interest between a defendant
and his or her attorney but failing to conduct an inquiry; (2) investigating the potential
conflict of interest but not fully investigating (a) "the basis for the defendant's
dissatisfaction with counsel and ([b]) the facts necessary for determining if that
dissatisfaction warrants appointing new counsel"; or (3) conducting an appropriate
inquiry but improperly determining whether to substitute counsel. 357 P.3d at 887-88.

Neloms contends that the district court failed to conduct an appropriate inquiry
into his complaints or give him an adequate opportunity to argue the motion at
sentencing. Contrary to Neloms' assertion on appeal, the record shows that the district
court allowed Neloms an opportunity to comment; he simply did not avail himself of that
opportunity. Our Supreme Court has held that once a defendant files an articulated
statement of dissatisfaction with appointed counsel, the failure to "renew the motion for
new counsel periodically" does not relieve the district court of the duty to inquire, see
Brown, 300 Kan. at 577-78. However, this case is distinguishable because the district
court explicitly gave Neloms the opportunity to elaborate on his dissatisfaction with
counsel and his desire to retain new counsel. Neloms did not do so.

This case is analogous to State v. Williams, 290 Kan. 1050, 1051-52, 236 P.3d 512
(2010). In that case, the defendant sent a letter to her counsel alleging that counsel had
negotiated her plea of no contest to felony murder in order to obtain a quick resolution of
the case, without regard to the defendant's best interests. At a later hearing on her motion
to withdraw her plea, defense counsel entered the letter into the record and informed the
29

district court that the defendant wanted to withdraw her plea because she felt it was not
"'done with [her] best interest in mind.'" 290 Kan. at 1051-52. When the district court
heard directly from the defendant at the hearing, however, the defendant did not complain
about her attorney. Accordingly, when our Supreme Court later considered the
defendant's argument on appeal that the district court failed to make the proper inquiries
into the alleged conflict between the defendant and her counsel, our Supreme Court held
that the district court had not erred. 290 Kan. at 1056.

Similarly, here, when the parties were specifically discussing Neloms' wish to
retain different counsel and the district court gave Neloms the chance to air grievances
against his counsel, Neloms did not do so. Moreover, as the State points out, it is
debatable whether the district court was aware of Neloms' pro se motion. The motion was
filed the afternoon before sentencing, at which point it was set on a motions docket
before a different judge. According to the notice of the motion hearing, notice was sent
through interoffice mail to the assigned motions judge, the district attorney, and defense
counsel. There was no mention at the sentencing hearing of the motion by any party.
Although defense counsel speculated that the reason Neloms desired to retain new
counsel was dissatisfaction with trial counsel, Neloms did not elaborate or articulate at
sentencing any specific reason for dissatisfaction.

In short, it appears highly unlikely from the record on appeal that the sentencing
court was aware of the pro se motion for new counsel. Moreover, Neloms did not identify
any potential conflict of interest to the district court at the sentencing hearing when given
the opportunity to do so. Because the district court was never aware of the alleged
conflict of interest, it did not trigger the district court's obligation to inquire further. For
these reasons, Neloms is not entitled to any relief on this claim.



30

SENTENCING ERROR

In his final issue on appeal, Neloms contends that the district court imposed an
illegal sentence when it ordered him to serve lifetime postrelease supervision in relation
to his aggravated trafficking conviction. Neloms points out that at the time he committed
the crime, lifetime postrelease supervision was not statutorily mandated for the crime of
aggravated human trafficking. The State responds that because lifetime postrelease
supervision was appropriate for aggravated indecent liberties with a child, for which
Neloms was also convicted, the sentence was not illegal.

An illegal sentence is "'(1) a sentence imposed by a court without jurisdiction; (2)
a sentence that does not conform to the applicable statutory provision, either in the
character or the term of authorized punishment; or (3) a sentence that is ambiguous with
respect to the time and manner in which it is to be served.' [Citation omitted.]" State v.
Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). This court has unlimited review
over whether a sentence is illegal. See 301 Kan. at 1034. Although Neloms did not raise
this issue below, he may raise it for the first time on appeal. 301 Kan. at 1027.

Neloms is correct: at the time he committed the crime, aggravated human
trafficking was a severity level one person felony, with a postrelease supervision term of
36 months. See K.S.A. 2010 Supp. 21-3447(b); K.S.A. 22-3717(d)(1)(A). Yet the district
court sentenced him to lifetime postrelease supervision on the conviction of aggravated
human trafficking. Because this sentence did not conform to the applicable statutory
provision, it is illegal.

The State acknowledges that the correct postrelease supervision term for
aggravated human trafficking was 36 months but points out that aggravated indecent
liberties with a child, a severity level 3 crime for which Neloms was also convicted,
requires lifetime postrelease supervision. See K.S.A. 22-3717(d)(1)(G), (d)(5); K.S.A.
31

22-3717(d)(1)(G), (d)(2). Furthermore, "[i]n cases where sentences for crimes from more
than one severity level have been imposed, the offender shall serve the longest period of
postrelease supervision as provided by this section available for any crime upon which
sentence was imposed irrespective of the severity level of the crime." K.S.A. 22-
3717(d)(1)(F).

The district court erred by sentencing Neloms to lifetime postrelease supervision
for his aggravated human trafficking conviction. However, this error does not affect
Neloms' overall sentence as he is still subject to lifetime postrelease supervision based on
his aggravated indecent liberties with a child conviction. The case is remanded with
directions to enter a nunc pro tunc order correcting the postrelease supervision term for
Neloms' aggravated human trafficking conviction to 36 months.

Affirmed in part, vacated in part, and remanded with directions.